Sherman v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 20 December 1909
• Citation: 123 S.W. 1182,93 Ark. 24
• Parties: SHERMAN v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Arkansas Supreme Court

123 S.W. 1182

93 Ark. 24

SHERMAN v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Arkansas

December 20, 1909

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

H. A Parker, for appellant.

Trains should not run thirty miles per hour where people are constantly using the track, as at public crossings. 81 Ark 191.

Thos S. Buzbee and Geo. B. Pugh, for appellees.

A man has no more right to sit down on a railroad at a crossing than at any other place on the track. 49 Ark. 257. One injured while sitting on a railroad track at a crossing is a trespasser. 5 Ark. 477. Going upon a railroad track at a crossing without looking and listening is negligence per se. 65 Ark. 235; 54 Ark. 431; 56 Ark. 457; 62 Ark. 158. An objection to an instruction must be preserved in the motion for a new trial. 78 Ark. 374. It is not necessary for both the engineer and fireman to keep a lookout, especially on straight track. 62 Ark. 182. The right of the public in a highway crossing a railroad is simply a right of passage. 65 Mich. 186; 8 Am. St. 876; 28 Am. & Eng. R. Cas. 633.

OPINION

BATTLE, J.

On the 6th day of March, 1908, while Tweed Sherman was sitting or lying upon the railway track of the Chicago, Rock Island & Pacific Railway Company, at a highway crossing, a train of that company ran over and killed him, he surviving only a short time. John Sherman administered upon the estate of the deceased, and in his capacity of administrator brought this action against the railway company and Charley Freeze, the locomotive engineer of such train, to recover damages caused by such injury. The defendants answered; and plaintiff and defendants adduced considerable evidence to sustain their respective contentions. It is unnecessary to set out this evidence at length in this opinion. For it is not for us to decide whether the verdict of the jury was in accordance with the preponderance of the evidence as we find it, but whether there was evidence adduced in the trial which was legally sufficient to sustain it. There was evidence adduced which tended to prove the following facts: On the 6th day of March, 1908, Tweed Sherman sat or lay upon the railway track of the defendant railway company at a highway crossing. While in that position, a train of the defendant ran over him and inflicted injuries of which he died. The engineer of the train kept a lookout, but failed to discover him in time to avoid injuring him; but when he did, he gave alarms and made reasonable efforts to warn him of his danger, and did all he could to avoid injuring him by stopping the train, without success. The deceased could have prevented the injury by the exercise of vigilance, which he failed to do.

Over the objections of the plaintiff the court instructed the jury, in part, as follows:

"No. 4. You are instructed that the plaintiff's intestate, Tweed Sherman, was guilty of negligence in sitting down upon the railroad track of the defendant, C., R. I. & P. Ry. Co.; and if you find from the testimony that plaintiff's intestate, Tweed Sherman, was sitting down by or on the railroad track, and he was injured, he was a trespasser, and the only duty required of either of the defendants, with reference to him, was not to wilfully or maliciously injure him; and if you find from the testimony that, after the engineer or fireman discovered him on the track, they used ordinary care to prevent the injury, and by the use of ordinary care were not able to stop the train in time to avoid injuring him, after discovering him upon the track, and discovering that he was a live human being, your verdict will be in favor of the defendants.

"5. You are instructed that the deceased was a trespasser upon the track of the railroad company, and that the defendant, Charley Freeze, was only required to exercise ordinary care in the running of its train at the time of the accident; and if you believe that at the time of the accident he was exercising ordinary care and prudence in the running of his train, then you will find for the defendant, Charley Freeze.

"6. You are instructed that the engineer and fireman were not bound to stop the train as soon as they saw an object upon the track; and if they honestly thought it was an inanimate object or a hog, they had a right to run on without slacking the speed of the train, and after they discovered that the object was a man, and that he was alive, if you find that they did discover that it was a man and was alive, they had the right to assume that he would heed the danger signal, and get out of the way and, after giving the danger signal, if you believe they did give the danger signal, as soon as they discovered the object was a man and alive, then, if they discovered that he was not going to get off or heed the danger signal, it was their duty to use ordinary care to stop the train before striking him; and if you believe that they did so, and by use of such care were unable to stop the train in time to avoid injuring him after discovering that he was not going to get out of the way, your verdict will be for the defendant. You are instructed that it was the grossest sort of negligence for the deceased, Tweed Sherman, to sit down upon the railroad track where he knew trains frequently passed and were likely to pass at any moment.

"14. You are instructed that it is not necessary for both the fireman and engineer to keep a lookout, nor is it necessary for both of them to use the means provided for stopping the trains or giving the alarm; and if you find that the engineer kept a lookout and gave the alarm, and also (used) the means provided for stopping the train, it was not necessary for the fireman to do anything."

The jury returned a verdict in favor of the defendants. Judgment was rendered in their favor, from which the plaintiff has appealed.

Plaintiff...